Parties who sense that an arbitrator leans the other way often reach for the wrong tool — a walkout, a writ, or a premature court application. The Arbitration and Conciliation Act, 1996 prescribes a precise sequence: disclosure by the arbitrator under Section 12(1) against the Fifth and Seventh Schedules, challenge on justifiable doubts under Section 12(3), the procedure and fifteen-day window of Section 13 before the tribunal itself, and preservation of the objection for the Section 34 stage if the challenge fails. Distinct from all of this is de jure ineligibility under Section 12(5) — where the mandate can be terminated through the Section 14 route. Using the right track, on the right clock, decides whether the objection lives or dies.
The design: bias objections stay inside the arbitration
The 1996 Act, faithful to the Model Law, is built to keep proceedings moving: objections to an arbitrator are decided first by the tribunal, and courts see them — with one carve-out — only at the award stage. The 2015 amendments hardened the framework with three instruments: a structured disclosure regime keyed to the Fifth Schedule's illustrative circumstances; the Seventh Schedule's absolute ineligibilities under Section 12(5); and the Sixth Schedule's standard disclosure form. The result is two distinct tracks that practitioners must not blur: the "justifiable doubts" track through Sections 12(3) and 13, and the "ineligibility" track through Sections 12(5) and 14.
Track one: justifiable doubts (Sections 12(3), 13)
1. The circumstance surfaces
Through the arbitrator's disclosure, or independently — a past retainer, repeat appointments, a relationship touched by the Fifth Schedule.
2. Written challenge in fifteen days
A statement of reasons to the tribunal under Section 13(2), within fifteen days of knowledge. The clock is the discipline; delay is waiver territory.
3. The tribunal decides
Unless the arbitrator withdraws or the parties agree on removal, the tribunal — challenged member included — rules on the challenge and, if rejecting it, proceeds.
4. Preservation for Section 34
A failed challenge is raised again in the application to set aside the award under Section 13(5) read with Section 34 — provided it was made, and made in time, before the tribunal.
The strategic consequence of this design is that a party cannot hold the objection in reserve as insurance against an adverse award. The challenge not made within fifteen days is, for practical purposes, lost; the challenge made and rejected must be prosecuted at the Section 34 stage on the record built before the tribunal. Building that record — the disclosure sought, the questions asked, the documents establishing the relationship — is the real work of the challenge.
Track two: ineligibility (Sections 12(5), 14)
Seventh Schedule circumstances are not doubts to be weighed but disqualifications operating by force of law: the arbitrator's relationship with a party or counsel within the listed categories renders him ineligible "notwithstanding any prior agreement to the contrary". Because an ineligible arbitrator lacks a mandate de jure, the aggrieved party need not travel the Section 13 route or await the award; it may approach the court under Section 14(2) for a decision on termination of the mandate. Waiver of Section 12(5) demands an express agreement in writing made after disputes arose — participation, conduct or contract clauses signed earlier do not suffice. This is also the doctrinal home of the objections to unilaterally appointed arbitrators and to appointing authorities who are themselves interested, which have reshaped standard-form arbitration clauses across lending, construction and government contracting.
Drafting answers most of these disputes in advance: a neutral appointing mechanism or institutional rules; party-agreed disclosure standards; and a panel-based selection where one side's affiliates cannot dominate. In Delhi-seated arbitrations, the Delhi International Arbitration Centre's framework offers an institutional route that avoids the unilateral-appointment quagmire entirely.
Conduct while the objection pends
Three rules of self-preservation: continue participating under protest — Section 13(4) contemplates the arbitration proceeding, and absence forfeits the record without saving the objection; put every relevant question and document request in writing to the tribunal, because the Section 34 court will see only what the record holds; and keep the objection specific — challenges founded on adverse procedural rulings dressed up as bias fail, and their failure discredits the genuine circumstance if one later emerges.
The chamber of Advocate Manish Jha appears in arbitral proceedings and in arbitration-related court matters — appointment, mandate termination, interim measures and award challenges — before the High Court of Delhi and the commercial courts of Delhi. This article is for general information; it is not legal advice and does not create an advocate-client relationship.
Frequently Asked Questions
What must an arbitrator disclose?
Under Section 12(1), circumstances such as relationships with the parties, counsel or the subject matter — financial, business, professional or other — likely to give rise to justifiable doubts as to independence or impartiality, and circumstances affecting ability to devote time and complete the arbitration within twelve months. The Fifth Schedule guides what may justify doubts; the disclosure is made in the Sixth Schedule form and is a continuing obligation.
What is the deadline for challenging an arbitrator?
Fifteen days. Section 13(2) requires a written statement of reasons to the tribunal within fifteen days of becoming aware of the tribunal's constitution or of the circumstances founding the challenge. Sitting on known circumstances — participating in hearings, filing pleadings — is treated as waiver under the proviso to Section 4 and Section 12(4)'s limits on challenging one's own appointee.
Who decides the challenge?
The tribunal itself, including the challenged arbitrator, unless the arbitrator withdraws or the other party agrees. If the challenge fails, the tribunal continues and makes its award; the challenging party's remedy is to raise the ground in a Section 34 application against the award. There is no immediate court appeal against the rejection of a Section 13 challenge.
How is Section 12(5) ineligibility different?
The Seventh Schedule categories — the arbitrator being an employee, consultant or advisor of a party, among others — make a person ineligible in law, not merely doubtable. Ineligibility strikes at the mandate itself: it can be waived only by an express written agreement made after the dispute arises, and termination of the mandate can be sought from the court under Section 14 on de jure inability, without waiting for the award. Unilateral appointment by an interested party falls in this territory.